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22-P-414 Appeals Court
COMMONWEALTH vs. THERESA A. TANTILLO.
No. 22-P-414.
Plymouth. April 7, 2023. – July 18, 2023.
Present: Ditkoff, Hand, & D'Angelo, JJ.
Motor Vehicle, Operation. Negligence, Motor vehicle. Evidence, Result of illegal interrogation, Judicial notice. Doctor, Prescription. Controlled Substances. Search and Seizure, Threshold policy inquiry. Threshold Policy Inquiry. Practice, Criminal, Motion to suppress.
Complaint received and sworn to in the Brockton Division of the District Court Department on August 27, 2019.
A pretrial motion to suppress evidence was heard by Daniel E. Dilorati, J., and the case was heard by Jeffrey K. Clifford, J.
Kristen Friedel for the defendant. Elizabeth A. Mello Marvel, Assistant District Attorney, for the Commonwealth.
D'ANGELO, J. After a jury-waived trial, a District Court
judge found the defendant guilty of negligent operation of a 2
motor vehicle, G. L. c. 90, § 24 (2) (a).1 The charge stemmed
from a collision in which the defendant's car hit a pole in a
parking lot at a Cumberland Farms store in East Bridgewater
(Cumberland Farms).
Prior to trial, the defendant filed a motion to suppress
statements she made to the police when she was stopped shortly
after the incident, on the ground that she had been subjected to
custodial interrogation without the benefit of Miranda warnings.
On appeal, she argues that the judge erred in denying her motion
to suppress and by taking judicial notice that all pill bottles
distributed by a pharmacist would have a label affixed on them
showing directions for use and cautionary statements. She also
claims that the evidence was insufficient to support her
conviction.
Concluding that the defendant was not in custody when she
was questioned, that there was sufficient evidence that the
defendant endangered the safety of the public by driving in a
1 The judge allowed a motion for a required finding of not guilty on a charge of leaving the scene of a motor vehicle accident after causing property damage, G. L. c. 90, § 24 (2) (a), and acquitted the defendant on a charge of operating a motor vehicle under the influence of drugs, G. L. c. 90, § 24 (1) (a) (1). 3
negligent manner, and that any error in taking judicial notice
was not prejudicial, we affirm.2
Background. We summarize the trial facts, as the judge
could have found them, in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979). On August 9, 2019, East Bridgewater police officers
received a dispatch about an accident in the parking lot of
Cumberland Farms. Some distance from Cumberland Farms, a police
officer stopped a vehicle on the side of the road. The officer
approached the defendant, who was the driver of the vehicle, and
asked her if she hit a pole at Cumberland Farms. The defendant
responded that she had hit the pole and that she was nervous,
lost, and looking for directions. She stated she was on her way
to her son's house. The officer observed that the defendant
seemed disoriented and was speaking slowly and shakily.
When the police officer asked the defendant to get out of
the vehicle, the defendant looked unsteady and held onto the car
door for support. The defendant appeared to have wet spots on
her dress and, responding to the officer's question, explained
that she spilled something on herself before leaving the house.
2 The defendant also argues that the cumulative impact of the errors created a substantial risk of a miscarriage of justice. Although a combination of errors may, in certain circumstances, present a substantial risk of a miscarriage of justice, see Commonwealth v. Cancel, 394 Mass. 567, 568 (1985), there is no such risk here for reasons we discuss below. 4
The officer then asked the defendant when she had left her
house, to which the defendant responded "2:30," although the
time of the questioning was approximately 2:05 P.M. The police
officer asked the defendant if she had taken or was on any
medications. The defendant responded that she had taken
Tramadol and Clonazepam that day and that those medications were
prescribed to her.
The defendant then performed several roadside assessments
during which she was unable to follow the officer's instructions
or to keep her balance. Another officer arrived at the scene
and conducted additional assessments. The defendant appeared
very unsteady, shaky, and had a blank look on her face. At that
time there were four officers on the scene. Paramedics arrived
and put the defendant on a stretcher because she was so unsteady
on her feet. They subsequently transported her to the hospital.
After the defendant left the area, the officers did an inventory
of her vehicle, and an officer testified that they found "some
prescription bottles in [the defendant's] name: Clonazepa[m],
Tramadol. I think Gabapentin was the other one." No bottles,
nor any pictures of the bottles, were introduced in evidence.
One of the police officers traveled from the scene of the
vehicle stop to Cumberland Farms to determine if there had been
any damage to the parking lot poles. He noted damage to a pole
but was unable to determine whether the damage was fresh. 5
After the close of the Commonwealth's case, the defendant
moved for a required finding of not guilty on all three charges.
The judge allowed the motion as to the charge of leaving the
scene of a motor vehicle accident after causing property damage
and denied the motion as to the other charges. At the close of
the case, the judge found the defendant not guilty of operating
a motor vehicle while under the influence of drugs and guilty of
negligent operation of a motor vehicle.
Discussion. 1. Motion to suppress. When reviewing the
denial of a motion to suppress, we defer to the judge's
determination of "the weight and credibility to be given oral
testimony presented at the motion hearing," and accept the
judge's findings of fact absent clear error, but we perform an
independent review of the judge's legal determinations.
Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
Certain facts were presented at the suppression hearing
that were not presented at trial. The motion judge found that
East Bridgewater police dispatch received a telephone call that
someone had crashed into a pole outside Cumberland Farms and
that the person appeared impaired. Dispatch then received a
second call that a Toyota Camry, identified by its license plate
number, had hit a pole and that the driver, who was identified
as a blonde woman, had stumbled out of the car. Using the
information from the telephone calls, a police officer located 6
and stopped the defendant's vehicle. The officer asked the
defendant if she was involved in an "accident" at Cumberland
Farms, and she responded, "[M]aybe."
The defendant asserts that she should have been provided
with Miranda warnings because she was in custody at the time the
officer questioned her. An interrogation is custodial if, based
on an objective evaluation of the circumstances, see
Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), "a reasonable
person in the defendant's shoes would have perceived the
environment as coercive." Commonwealth v. Wardsworth, 482 Mass.
454, 481 (2019). In assessing custody,
"the court considers several factors: (1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest."
Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). The so-
called "Groome factors," see Commonwealth v. Carnes, 457 Mass.
812, 819 (2010), are not exclusive, and the judge must consider
the totality of the circumstances. See Commonwealth v. Medina,
485 Mass. 296, 301 (2020). The Supreme Judicial Court has
refined this test, holding, "rather than attempting to determine
whether a reasonable person would believe he or she was free to 7
leave, . . . the more pertinent question is whether an officer
has, through words or conduct, objectively communicated that the
officer would use his or her police power to coerce that person
to stay." Commonwealth v. Matta, 483 Mass. 357, 362 (2019).
The questioning of the defendant took place on the street,
and this weighs against a finding of custody. See, e.g.,
Commonwealth v. Tejada, 484 Mass. 1, 9, cert. denied, 141 S. Ct.
441 (2020) (fact that "interrogation was in a public parking
lot, not in a police station or other secluded area" weighed
against determination that defendant was in custody); Vanhouton
v. Commonwealth, 424 Mass. 327, 331 n.7, cert. denied, 522 U.S.
834 (1997), quoting Pennsylvania v. Bruder, 488 U.S. 9, 10
(1988) ("traffic stops commonly occur in the 'public view,' in
an atmosphere far 'less police dominated' than that surrounding
the kinds of interrogation at issue in Miranda itself").
Additionally, from the defendant's point of view, the officer's
actions of simply stopping her car, for a presumptively
temporary amount of time, did not objectively create a coercive
environment. See Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 20
(1991). The motion judge concluded, and we agree, that the
place of interrogation was not coercive.
The motion judge found that "[t]he questions that [the
officers] asked the defendant were incidental to general on-the-
scene questioning." Brief preliminary questions asked in an 8
effort to confirm or dispel suspicion of criminal activity
typically do not require Miranda warnings. See Commonwealth v.
Kirwan, 448 Mass. 304, 311-312 (2007). An open-ended
preliminary question such as "What happened?" does not convey
suspicion of wrongdoing. See Commonwealth v. Callahan, 401
Mass. 627, 630 (1988). "[C]ustody must be determined based on
how a reasonable person in the suspect's situation would
perceive his circumstances, not on the subjective views harbored
by either the interrogating officers or the person being
questioned" (quotations and citations omitted). Medina, 485
Mass. at 303.
Here, the officers investigating the defendant were aware
that the car that was stopped had hit a pole at Cumberland
Farms. However, as most minor traffic collisions are not
crimes, and it was unclear that the pole had suffered any
damage, it had not been ascertained that any crime had occurred
at the time the officer began the questioning of the defendant.
The first question the officer asked was "if [the defendant] was
at . . . an accident at Cumberland Farms," to which the
defendant replied, "[M]aybe." Another officer then arrived on
the scene and asked the defendant "if she had hit something at
Cumberland Farms," to which the defendant replied, "[Y]es."
These were brief, preliminary questions asked in an effort to
confirm or dispel suspicion of criminal activity for which 9
Miranda warnings are not required. See Kirwan, 448 Mass. at
311.
The motion judge found that the questioning was
investigatory rather than accusatory. This ruling was correct.
The nature of the questioning was not coercive, and the
questioning never became aggressive. The questioning was
investigative in nature, and the officers never conveyed to the
defendant that they believed she had committed a crime. See
Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 505 (2011).
The initial nature of the questioning was not consistent with
interrogation. The defendant did not admit that she had been
involved in hitting the pole when she answered "maybe." It was
only after the defendant responded affirmatively to the
officer's question about whether she was involved in an
"accident" that police knew that she was the driver who had hit
the pole. However, there was still no definite indication that
any crime had been committed because the police, at that point,
had no information about whether the pole had suffered any
damage, and they only suspected that the driver may have been
impaired because of the information that she had stumbled out of
the car.
With regard to the final factor, whether the defendant was
free to end the interrogation, the officers never, "through
words or conduct, objectively communicated that the officer 10
would use his or her police power to coerce [the defendant] to
stay." Matta, 483 Mass. at 362. Contrast Commonwealth v.
Coleman, 49 Mass. App. Ct. 150, 152 (2000) (defendant told if he
persisted in denials he would be arrested, handcuffed, and
removed in presence of aunt, but if he confessed, he would be
summoned to court). The officers contacted paramedics to bring
the defendant to a hospital for medical evaluation. The
defendant was not formally arrested until after she was brought
to the hospital, which was well after the questioning had ended.
Weighing all of the relevant facts, and cognizant that no
one factor is dispositive, see Commonwealth v. Magee, 423 Mass.
381, 386 (1996), we conclude that the defendant was not in
custody when the police questioned her. The motion judge
properly denied the motion to suppress the defendant's
statements.
2. Sufficiency of the evidence. The defendant contends
that the evidence at trial was insufficient to prove beyond a
reasonable doubt that she operated her motor vehicle
negligently, because the lives or safety of the public were not
endangered when she struck the pole in the empty parking lot.
We disagree.
"In determining the validity of a claim challenging the
sufficiency of the Commonwealth's evidence at trial, we review
the evidence in the light most favorable to the Commonwealth to 11
determine whether 'any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.'"
Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), cert.
denied, 565 U.S. 1262 (2012), quoting Latimore, 378 Mass. at
677. "The inferences that support a conviction 'need only be
reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713,
cert. denied, 573 U.S. 937 (2014).
To prove the defendant guilty of negligent operation of a
motor vehicle, the Commonwealth must show "that the defendant
(1) operated a motor vehicle, (2) upon a public way, and
(3) (recklessly or) negligently so that the lives or safety of
the public might be endangered" (citation omitted).
Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255 (2006). Only
the third element is at issue here.3
There is no dispute that the defendant was operating the 3
vehicle. Nor does the defendant challenge that she was driving on a public way in the parking lot of Cumberland Farms or the street on which her car was stopped. See G. L. c. 90, § 24 (2) (a) (public way is "any way or . . . place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees"). To determine whether a way is public, "we look to see if the 'physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel'" (citation omitted). Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 832-833 (2010). 12
General Laws c. 90, § 24 (2) (a), "only requires proof that
the lives or safety of the public might be endangered, not that
they were endangered." Daley, 66 Mass. App. Ct. at 256. "The
question is whether the defendant's driving had the potential to
cause danger to the public, not whether it actually did."
Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015). One may
operate a vehicle "in such a way that would endanger the public
although no other person is on the street." Commonwealth v.
Constantino, 443 Mass. 521, 526-527 (2005).
Here, the defendant admitted that she was in an "accident"
at Cumberland Farms by striking a pole. She was disoriented and
was speaking slowly and shakily. Additionally, the defendant
was unsteady on her feet, held onto the car door for support,
and had consumed medication that day.4 The evidence was
sufficient to prove that the defendant's ability to control the
vehicle was significantly impaired, and as a result, the lives
and safety of the public might have been endangered. See, e.g.,
Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 543 (2020);
Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017);
Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).
4 The fact that the judge ultimately did not convict the defendant of operating under the influence of drugs does not preclude the consideration of such evidence in considering the negligent operation charge. See Commonwealth v. Robicheau, 421 Mass. 176, 184 (1995); Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017). 13
3. Judicial notice. Prior to presenting any evidence, the
Commonwealth moved in limine, over the defendant's objection,
that the trial judge take judicial notice "of certain
prescription packaging requirements" for pharmacists filling
prescriptions. Specifically, the Commonwealth requested that
the judge take judicial notice that G. L. c. 94C, § 21, requires
that a pharmacist affix to the container in which a controlled
substance is packaged "a label showing . . . directions for use
and cautionary statements, if any."5 The Commonwealth's motion
did not request that the judge take judicial notice of the
portion of the statute requiring that a pharmacist filling a
prescription "affix[] to the container a label showing . . . the
name of the patient . . . [and] the name of the controlled
substance." G. L. c. 94C, § 21. Thus, we do not consider
whether judicial notice of that portion of the statute would
have been appropriate.
The defendant argues that the judge's taking judicial
notice of the statutory requirement about "cautionary
statements" was prejudicial error because it would have led the
judge as fact finder to infer impermissibly that ingestion of
5 The Commonwealth's motion also requested that the judge take judicial notice that G. L. c. 94C, § 21, requires that pharmacists provide to patients certain information about abuse of narcotic drugs. The judge denied that part of the motion, and so we do not consider that issue. 14
those drugs would have affected the defendant's driving, without
any expert testimony about the effects of the drugs.6 We are not
persuaded.
"Motions in limine concerning the introduction or exclusion
of purportedly relevant evidence are properly made and
considered before and during trial, in advance of the evidence
being offered." Commonwealth v. Spencer, 465 Mass. 32, 42
(2013). See Mass. G. Evid. § 103(f) (2023). "The purpose of a
motion in limine is to prevent irrelevant, inadmissible or
prejudicial matters from being admitted in evidence . . . and in
granting such a motion, a judge has discretion similar to that
which he has when deciding whether to admit or exclude evidence"
(citation omitted). Commonwealth v. Hood, 389 Mass. 581, 594
(1983).
"[A]ll relevant evidence is admissible unless barred by an
exclusionary rule." Commonwealth v. Vitello, 376 Mass. 426, 440
(1978). See Mass. G. Evid. § 402 (2023). "The relevance
threshold for the admission of evidence is low" (citation
omitted). Commonwealth v. Gerhardt, 477 Mass. 775, 782 (2017).
Evidence is generally relevant where "(a) it has any tendency to
6 The defendant does not argue that the judge erred in allowing the Commonwealth's other motions in limine for the judge to take judicial notice that G. L. c. 94C, § 31, defines Tramadol as a narcotic and Clonazepam as a depressant. Thus we do not consider those issues. 15
make a fact more or less probable than it would be without the
evidence and (b) the fact is of consequence in determining the
action." Mass. G. Evid. § 401 (2023). "[I]t is not necessary
that the evidence be conclusive of the issue. . . . It is
sufficient if the evidence constitutes a link in the chain of
proof." Commonwealth v. Lopez, 91 Mass. App. Ct. 572, 576
(2017), quoting Mass. G. Evid. § 401 note. "Irrelevant evidence
is not admissible." Commonwealth v. Hampton, 91 Mass. App. Ct.
852, 854 (2017). See Mass. G. Evid. § 402. A trial judge has
broad discretion in making evidentiary rulings, which we will
not disturb absent an abuse of discretion or error of law. See
David v. Kelly, 100 Mass. App. Ct. 443, 447 & n.7 (2021). To
establish that a judge abused his or her discretion, a defendant
must show that there was "a clear error of judgment in weighing
the factors relevant to the decision . . . such that the
decision falls outside the range of reasonable alternatives"
(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). Trial judges must take judicial notice of all
General Laws of the Commonwealth. See, e.g., Commonwealth v.
Bones, 93 Mass. App. Ct. 681, 685 (2018) ("Courts are required
to take judicial notice of the General Laws of the Commonwealth,
statutes, and other public acts of the Legislature"). See also
Mass. G. Evid. § 202 (2023). General Laws c. 94C, § 21, states
in relevant part: 16
"The pharmacist filling a written, electronic or oral prescription for a controlled substance shall package the controlled substance in a container, affixing to the container a label showing . . . the name of the patient, . . . the name of the controlled substance, directions for use and cautionary statements, if any, contained in such prescription or required by law" (emphasis added).
Although it was proper for the judge to take judicial notice of
the statute, it was improper to take notice "that all bottles
distributed by a pharmacist would have a label on them"7
(emphasis added).
The mere fact that the statute requires a pharmacist to
include a label on prescription bottles does not mean the
bottles in this case had labels on them. Labels may be removed
or fall off, and sometimes people combine medications in a
single bottle for convenience. See Commonwealth v. Kirk, 39
Mass. App. Ct. 225, 229 (1995) ("judicial notice . . . cannot be
taken of material factual issues that can only be decided by the
fact finder on competent evidence"). The statute requires
labels to include "directions for use and cautionary statements,
if any, contained in such prescription or required by law"
(emphasis added). G. L. c. 94C, § 21. However, there was no
7 The Commonwealth also requested that the judge take judicial notice of the requirement in the same statute that pharmacists dispense a pamphlet for all narcotics distributions that includes information regarding abuse of that drug. However, the judge denied that request, explaining that "[w]hether it's a requirement or not, doesn't mean it happened. So, I'm a little bit troubled by that. I don't know that that pharmacist gave her directions. I don't know that." 17
evidence of what type of label, if any, was on the bottles found
in the defendant's car or what the cautionary instructions, if
any, were and how that would be relevant to the defendant's
knowledge. Therefore, although it was permissible for the judge
to take judicial notice of the statute prior to trial (during
the motion in limine), once the evidence had closed, the
judicially noticed information had no relevance without any
connection to any bottles in the car.
Defense counsel would have been entitled to have the judge
strike from the evidence the judicial notice of the portion of
G. L. c. 94C, § 21, about the requirement that prescription
labels contain directions for use and cautionary instructions.
However, because the defendant was acquitted on the charge of
operating a motor vehicle under the influence of drugs, if the
judge did consider the information, such consideration had no
meaningful effect on the negligent operation charge. See
Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983),
quoting Kotteakos v. United States, 328 U.S. 750, 764-765 (1946)
("after pondering all that happened without stripping the
erroneous action from the whole, . . . the judgment was not
substantially swayed by the error"). See also Duffy, 62 Mass.
App. Ct. at 923 ("even if the court were to assume that the
admission of the evidence . . . was error, it was obviously not 18
unduly prejudicial given the defendant's acquittal on the charge
to which it most directly related").
Judgment affirmed.